In re A.C.

• Decision Date: 16 June 1987
• Docket Number: No. 87-609.,87-609.
• Citation: 533 A.2d 611
• Parties: In re A.C., Appellant.
• Court: D.C. Court of Appeals

Page 611

533 A.2d 611

In re A.C., Appellant.

No. 87-609.

District of Columbia Court of Appeals.

Argued June 16, 1987.

Decided June 16, 1987.

Opinion Filed November 10, 1987.

Robert E. Sylvester, Washington, D.C., for appellant A.C.

Barbara F. Mishkin, Washington, D.C., for respondent fetus.

Vincent C. Burke, for appellees George Washington University and George Washington University Hosp.; Jack M. Frazier, Washington, D.C., was also present.

Richard S. Love, Asst. Corp. Counsel, for District of Columbia, intervenor as parens patriae, for the fetus; Barbara J. Mann, Asst. Corp. Counsel, Washington, D.C., was also present.

Elizabeth Symonds, Washington, D.C., with whom Lynn M. Paltrow and Janet Benshoof, New York City, were on the Memorandum in Response to the Court's Order to be Informed of Further Developments, for amicus curiae American Civil Liberties Union Foundation.

Before BELSON and TERRY, Associate Judges, and NEBEKER, Associate Judge, Retired.^*

NEBEKER, Associate Judge, Retired:

This appeal presented an emergency request for a stay of a Superior Court order permitting a Caesarean section on a terminally ill woman who was in extremis. This opinion is written after the fact; its purpose is to assist others and to test this court's decision with analysis of precedent —some of which was not considered at the time of decision. Counsel are commended for their assistance to the courts—trial and appellate. Condolences are extended to those who lost the mother and child.

History tells us that innumerable health care emergency issues used to be decided within the family and medical circle. In the past few decades, for reasons similar to many of those prompting expanded recourse to the courts generally, health care providers have sought equitable or declaratory action approving or directing active or passive treatment of ill or injured patients. These patients—sometimes with family or friends in attendance—are often in extremis ; some are not conscious or are otherwise unable to express present desire; some are minors or, as here, in fetal state.

Complex issues—legal, moral and religious—are presented, and courts, though they must under present circumstances, are often hard pressed to arrive at a right answer. The courts do, however, make the final mortal decision. That is, in itself, probably the best that can be said of the process. It would be far better if, by legislation, these bio-ethical decisions could be made by duly constituted and informed ethical groups within the health care system, and if desired, appellate review as provided in other administrative proceedings. In this way, the need to attempt to inform judges of, to them, complex medical facts on very short notice could be eliminated.

On June 16, 1987, George Washington University and George Washington University Hospital (the hospital) sought a declaratory order from the Superior Court "as to what it should do in terms of the fetus, whether to intervene [by Caesarean section] and save its life." The trial court, after a hearing at the hospital, determined that the hospital should proceed with the operation, and an appeal was taken and a stay sought. Later that day, after a telephone conference call hearing, this court issued an order denying the motion for stay. That order effectively ended the appeal; the operation was performed, and the child and mother died soon thereafter.

I

A.C. was diagnosed with leukemia when she was thirteen years old. As part of her treatment, she underwent a number of major surgical procedures, therapy, and chemotherapy. When she was twenty-seven years old, after her cancer had been in remission for three years, A.C. married. At the time she became pregnant, she had not undergone chemotherapy for more than a year. In her fifteenth week of pregnancy, she was referred to the hospital's highrisk pregnancy clinic.

When A.C. was approximately twentyfive weeks pregnant, she went to her regularly scheduled prenatal visit complaining of shortness of breath and some pain in her back. Her physicians subsequently discovered that she had a tumor mass in her lung which was most likely a metastatic oxygenic carcinoma. She was admitted to the hospital on June 11 and her prognosis was terminal.

On June 15, during A.C.'s twenty-sixth week of pregnancy, A.C., her physicians, her mother, and her husband discussed the possibility of providing A.C. with radiation therapy or chemotherapy to relieve her pain and to continue her pregnancy. Her physicians believed that her unborn child's chances of viability would be greatly increased if it were delivered when it had reached twenty-eight weeks gestational age. By June 16, the date on which the hospital sought the declaratory order in the Superior Court, A.C. had been heavily sedated so that she could continue to breathe. Her condition was declining, and the attending medical staff concluded that passive treatment was appropriate because the mother would not survive and the child's chances of survival were grim. The hospital administration then decided to test this decision in the Superior Court.

The trial court appointed counsel for A.C. and the fetus, respectively. The District of Columbia was permitted to intervene for the fetus as parens patriae. A hearing was held at the hospital and was transcribed.

There was some dispute about whether A.C. would have chosen to have a Caesarean section on June 16. Before she was sedated, A.C. indicated that she would choose to relinquish her life so that the fetus could survive should such a choice present itself at the fetus' gestational age of twenty-eight weeks. Her physicians never discussed with her what her choice would be if such a choice had to be made before the fetus reached the twenty-eight-week point. The fetus was suffering oxygen starvation and resultant rapid heart rate. There was at that point less than 20 percent chance that it would be afflicted with cerebral palsy, neurological defects, deafness and blindness. There was not a clear medical consensus on the course of A.C.'s treatment. Those physicians who objected to the proposed surgery did so because A.C. refused her consent to the procedure, not because the surgery was medically objectionable. One physician testified that he believed that A.C. would not have wanted to deliver a baby that might have to undergo the pain of having handicaps that are associated with premature delivery. Another physician believed that A.C. would not have refused permission for the Caesarean section to be performed. During the course of her pregnancy, however, A.C. was aware that a number of medications she was taking might harm the fetus. Nevertheless, she expressed a desire to her physicians to be kept as comfortable as possible throughout her pregnancy and to maintain the quality of her life.

The trial court determined that the fetus was viable and that the District of Columbia had an interest in protecting the potential life of the fetus. See Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Relying on an earlier Superior Court decision, In re Maydun, 114 Daily Wash.L.Rptr. 2233 (D.C.Super.Ct. July 26, 1986),¹ the court decided that the Caesarean section should be performed.

Shortly after the trial judge made his decision, A.C. was informed of it. She stated, during a period of lucidity, that she would agree to the surgery although she might not survive it. When another physician went to A.C. to verify her decision, she apparently changed her mind, mouthing the words, "I don't want it done." There was no explanation for either decision.

After our Clerk was advised of the desire to appeal, a telephonic hearing was had before a hastily assembled division of the court. The trial judge's findings were read to us, and we heard from counsel and an attending physician. The latter answered questions respecting the relative chances of survival of both A.C. and the fetus with and without the surgery. He also informed us of the rapid decline of A.C. and the need to proceed promptly with the surgery, if it was decided to do so. There was no time to have the transcript read or to do effective research. The atypical nature of the appellate hearing included our hearing directly from one of the physicians.

The court based its decision to deny a stay on the medical judgment that A.C. would not survive for a significant time after the surgery and that the fetus had a better, though slim, chance if taken before A.C.'s imminent death. If A.C. died before delivery, the fetus would die as well. Though A.C. might have lived twenty-four to forty-eight hours, the surgery might have hastened her death. The ordinary question of likelihood of ultimate success on the merits was deemed subsumed in the immediate necessity to balance the delicate interests of fetus survival with the mother's condition and options on her behalf.

In retrospect, we must acknowledge that any attempt to use rules on stay procedures places appellate form over substance. No appeal in this case could mature. We decided the entire matter when we denied the stay.

II.

We could begin our analysis of the law, which some may reasonably hold to be self-justifying, by testing ordinary rules for a stay against these facts. And we well know that we may have shortened A.C.'s life span by a few hours. We do not think we should opine whether the decision would have or should have been different if her quality of life during that period had been better than it was.

In recent years, a number of commentators have written on the propriety of courtordered Caesarean sections. See, e.g., Bowes and Selgestad, Fetal Versus Maternal Rights: Medical and Legal Perspectives, 58 Obstetrics & Gynecology 209 (1981); Gallagher, Prenatal Invasions & Interventions: What's Wrong With Fetal Rights, 10 HARV. WOMEN: L.J. 9 (1987); Rhoden, The Judge in the Delivery Room: The Emergence of Court-Ordered Caesareans, 74 CALIF.L.REV. 1951 (1986); Note, ...